Q: Mr. Strauss – I was let go by my employer because I missed work for two weeks. I had run out of sick time, but I couldn’t help it because I got meningitis. I think they fired me out of bad spirit and retaliation. Can or should I sue?
A: Yes, you can sue, but should you? Now that is another matter. Let’s note up front that firing an employee out of retaliation is legally a bad idea for employers, especially since the Supreme Court made it easier to do so a few years ago in the Burlington Northern & Santa Fe Railway Co. v. White case. This is especially something small business people need to know about.
One piece of advice: Don’t sue.
But before I get there, first we have a Public Service Announcement:
Having practiced business law and litigation for longer than I care to remember, my general advice is to avoid suing if at all possible. Lawsuits are expensive, time-consuming, cumbersome, resource-draining, emotionally exhausting ways to resolve disputes.
And as I am always wont to say, your odds of winning are 50-50; someone is going to win and someone is going to lose. Oh sure, you may have good facts and the law on your side, but even then, you just never know what a judge or jury will decide. It’s a crapshoot. So proceed with litigation at your own peril.
You’ve been warned.
Now, let’s drill down on this idea of retaliatory firings. Firing someone because they didn’t do their job is one thing and usually OK, but firing someone out of retaliation is not. Small businesses better know the difference.
In the case I mentioned above, the Court made it easier for employees to sue employers based on claims of retaliation.
Here are the facts: Sheila White was a forklift operator for a railroad and she accused her supervisor of sexual harassment. While the railroad investigated and eventually suspending the foreman and enrolled him in “sensitivity classes” (see, this really is fun stuff!), Ms. White was also suspended for 37 days and then reassigned to the much more physically demanding job of track worker where she had to lift 100-pound jackhammers, travel much more, lug rocks, and work more hours.
Ms. White sued, claiming the suspension and reassignment were retaliatory in nature and therefore illegal. A trial court awarded her $34,000 for the retaliation (though not for the original alleged harassment) and the high court agreed. In a rare 9-0 vote, the justices held that Ms. White was in fact improperly retaliated against.
In so doing, the justices also created a new standard for what constitutes retaliation, ruling that any “materially adverse” action that might dissuade “a reasonable worker” from complaining about discrimination equals retaliation.
So what does this mean for you? A few things:
- Understand that retaliation potentially occurs anytime an employee complains of some sort of discrimination (it need not just be sexual) – and this is the important part – or otherwise has exercised some legal right (say, taking time off to have a baby, or voting, etc.), and the employer responds in a negative way.
- To succeed, an employee must show that he or she engaged in some sort of initial “protected conduct”, that as a result, he or she suffered an “adverse employment action”, and that there is a causal connection between the two.
- Finally, the new ruling means that an “adverse employment action” need not simply be a demotion, cut in pay, being fired, or something similar. As Ms. White proved, retaliation can take many forms.
The bottom line is that you need to have strict policies against any form of discrimination in your office, take any such claims seriously, and don’t allow anyone to retaliate against the accuser.